channelsuksThe case of Kadir v Channel S Television [2014] EWHC 2305 was a hearing for assessment of damages in a libel claim following default judgment.  The Defendant, a Channel broadcasting in the UK in the Bengali language, carried a news item in December 2011 alleging that the Second Claimant, a money transfer business, was reasonably suspected of fraud and that its director, Mr Kadir, had dealt with suspicions against the business’ employees in a highly evasive and incompetent manner.

Nicol J awarded the Claimants a total of £40,000 in damages (£20,000 for each Claimant). The case is a useful reminder on factors impacting on the assessment of damages and also highlights the current disparity between awards of damages in libel and privacy cases.

The broadcast alleged that the Second Claimant “faces accusations of fraud” and showed pictures of customers gathering outside its closed offices. It also mentioned Mr Kadir by name, saying that he was “nowhere to be found”. The key part of the transcript is about one page long as is set out in paragraph 5 of the judgment.  As the Defendant offered an undertaking not to publish the same or any similar words to those complained of an injunction would have been superfluous and so the only issue at the hearing was assessment of damages.

The judge began by deciding what the words complained of in the broadcast meant and agreed with the meanings put forward by the Claimants, namely:

 – Individuals working for the Second Claimant were reasonably suspected of having defrauded a large number of its customers of substantial sums of money.

 – The Second Claimant could not be trusted to transfer its customers’ money to its intended recipients.

 – The First Claimant had dealt with the very serious suspicions against the 2nd Claimant’s employees and the failures to transfer its customers’ money in a highly evasive and incompetent manner.

 The aim of general damages for libel is to put the Claimant in as good a position as if the tort had not been committed:

 “Since the essence of libel is damage to reputation, one purpose of damages is to compensate the Claimant for harm to his or its reputation and, so far as possible, to vindicate his or its reputation. In the case of an individual claimant (but not a corporate body), damages in defamation are also to provide some compensation for the hurt, distress and other injury to feelings which publication of the libel and, if relevant, the subsequent behaviour of the defendant, has caused to the injured party – see for instance John v MGN Ltd [1997] QB 586, 607” [10]

The court considered the extent of the publication; as no figures were provided by the Defendant it accepted the estimate provided by the Claimants of about 3,500 viewers.  It found that the broadcast would have been particularly likely to reach the part of the population from which the Claimants’ customers were drawn.

The nature of the broadcast is also something that needs to be taken into account when determining damages. Here it was a relatively short segment of a news programme which was also available online. The court found that it is the nature of television programmes that they have something of an ‘ephemeral quality’.  One assumes therefore that had the allegation been made in a more permanent form it would have resulted in higher awards.

The Defendant relied on the fact that the business had been the victim of a robbery at which £310,000 was stolen as evidence of why unease had been generated about it; however the court held that the broadcast was still likely to have had a “seriously detrimental effect” on its trading reputation as a money transfer agency depends on trust which is reposed in it by its customers [17].

Claimant’s evidence about his reaction to the publication was taken into account by the judge in respect of his claim:

The First Claimant says he was shocked by the broadcast. He is known as a religious scholar and hence he had the title, ‘Molana’. For someone in his position especially, the allegation of evasion and incompetence was likely to be particularly hurtful. Because of the broadcast, he felt it necessary to stand down from being a director of the Second Claimant.” [19]

Finally, the fact that the Defendant had not properly engaged with the litigation weighed against it.  It filed a document purporting to be a defence but not in a proper form. Faced with an unless order (ie that unless within 14 days a properly pleaded defence was filed and served the purported defence would be struck out) it filed a ‘defence and counter claim’ that was still found to be deficient. The new statement of case made an allegation that the Defendant had been caused ‘damage’ (amounting to £35,000) as a result of this ‘frivolous claim’. Mr Kadir said that this allegation aggravated the injury to his feelings and this was taken into account by the judge in the assessment of damages. The fact that the Defendant had never apologised to either Claimant was also a factor which increased the sum awarded.

The damages for this libel contrast starkly with the low awards that are given by Courts in privacy claims. The total amount for this libel relating to a ‘level 2’ allegation of fraud and an allegation of incompetence in a short broadcast published in Bengali to about 3,500 viewers resulted in £40,000 damages in total. The publicly available judgment demonstrates to the world that the allegations were false. By way of comparison, Max Mosley’ received £60,000 privacy damages for the publication of an article exposing him as a “secret sado-masochist sex pervert” and a surreptitiously taken and highly intimate sex video to millions. The judgment cannot undo the invasion to Mr Mosely privacy – indeed it necessarily sets out the details of the video to a further audience.

However despite this, the publicly available details of privacy cases which have resolved out of court do appear to show that some are settling for fairly significant sums.  After the managed litigation of the phone hacking claims was set up there have been some high public settlements: Jude Law settled his phone hacking claim for £130,000; Sienna Miller settled for £100,000; and Charlotte Church and her parents for £300,000. Recently the two-year old son of Adele settled a privacy action in July 2014 over paparazzi photos taken of him for a “five-figure sum” and their legal costs.

In addition the recent decision of AB v Ministry of Justice ([2014] EWHC 1847 (QB)) following Halliday v Creation Consumer Finance Ltd (2013) EWCA Civ 333 have allowed compensation under the Data Protection Act 1998 for distress under s.13(2) of the Act where only nominal damages have been awarded in relation to the financial loss aspect of the claim under s.13(1). These decisions are likely to result in further DPA claims alongside privacy claims; which in turn will lead to further opportunities for the courts to assess damages in privacy cases. Whether such opportunities will lead to an increase in privacy awards so that they are more in line with libel awards remains to be seen, but with these two types of claims getting ever closer, it would seem somewhat odd if they did not do so eventually.